The Government still can’t get its story straight about a protocol it knew would be problematic — and that now carries legal risk
The legislation published yesterday would mutilate the NI Protocol in more substantive ways than opponents of the Irish Sea border could scarcely have hoped for.
But just hours before the bill was published, Boris Johnson had already lied about it. At this stage, opponents of the protocol should not get overly excited, and supporters of the protocol should not be overly dismayed; the end is still not in sight and far from certain.
What is clear is that if this legislation ever becomes law and if ministers use some of the powers the bill would give them in the way the Government says they would, it will cut away most of the areas of the protocol which are objectionable either to unionists on constitutional grounds or to businesses on practical grounds.
Yet the story of Brexit has been that removing one problem often creates another. If the EU was to restrict Northern Ireland firms’ access to its single market, that would remove the key benefit of the protocol. If the EU instigates a trade war with the UK, that will push up prices and further poison politics.
This bill is mired in Conservative in-fighting, with Boris Johnson desperately attempting to cling on to power, Liz Truss positioning herself to succeed him and the various wings of the disunited party using the legislation for their own purposes.
That has led many observers who dislike the Conservatives to dismiss this bill as wholly about Westminster politics. Irish foreign minister Simon Coveney suggested as much at the weekend — implicitly suggesting that his own government’s motives around the protocol are impeccably pure.
But this bill can be both about Tory in-fighting and also about a genuine realisation in Whitehall that what they’ve signed up to is nightmarish in its complexity and will get harder over time. Individuals who have spoken to senior Whitehall figures involved in the drafting of the bill believe that there is now real concern at the scale of the problems the protocol creates and the extent to which it constrains the Government’s jurisdiction over Northern Ireland — amplified by the overwhelming opposition of unionism to the protocol.
Whatever the motivation, this bill tears asunder what less than three years ago Mr Johnson trumpeted as a “fantastic deal” which was “oven-ready”.
At the time the protocol was agreed, he claimed it would mean no Irish Sea border, no checks on goods going to Northern Ireland and the entire UK leaving the jurisdiction of the European Court of Justice. All of those claims were profoundly dishonest.
That now matters, in a legal as well as a moral sense. The Government has published a summary of its legal position. That shows that its stance is founded on “the doctrine of necessity” — that is, that the Government had no option here other than to radically alter the protocol. The Government argues that it had to act in this way to protect the Good Friday Agreement and to preserve stability in Northern Ireland — but can only do so if it did not contribute to the problem it now says needs fixing.
The legal position reads more like a political statement that dispassionate legal advice, saying that “the Government expected the EU to recognise that the protocol had to be applied and administered in a way that took full account of the unique context of NI”.
It claims that “the peril that has emerged was not inherent in the protocol’s provisions”. This is simply nonsense, contradicted both by the Government’s own documentation at the time and even by what it is saying now.
The Government knew from the outset that it was creating an Irish Sea border, that this would involve additional cost and that it would seriously unsettle unionists. Rather than confront that honestly, Mr Johnson lied.
Yesterday Mr Johnson played down the bill as a “relatively trivial set of adjustments”. Mr Johnson has been heavily involved in this process — indeed, he has clashed with Ms Truss, attempting to persuade her not to go so far with the legislation. Therefore, he is aware of the sweeping scale of this bill and is again being dishonest with the public.
He knows that this is a wholesale repudiation of the protocol. The Government’s own attempts to cover past dishonesty here are self-contradictory. On the one hand, Ms Truss and Mr Johnson insist that the protocol they negotiated was terrific and it is only the dastardly EU’s implementation of it which is the problem (even though it is the UK, not the EU, which is doing the implementing).
But on the other hand, a 10-page Foreign Office briefing paper yesterday made clear that the problem is the text of the protocol itself – and that is why this bill is necessary to change it. The Foreign Office said with apparent surprise that “the protocol treats goods going from GB to NI as if they were going to another country,” when that was the heart of the deal, as it understood full well.
There is little chance of the DUP returning to the Executive based on this promise — although it may now allow an Assembly Speaker to be appointed, which would let the legislative branch of devolution function.
One aspect of this will particularly trouble the DUP. The Foreign Office briefing document refers to “the urgency and seriousness of the problems”, yet the Government is doing nothing to immediately address those problems which it says are massive and pressing.
The Government could trigger Article 16 of the protocol as a temporary measure to remove parts of it while this legislation is travelling through Parliament over the next year or so, or could unilaterally disapply parts of the protocol — as it has done before. Neither option is even being hinted at.
There is a good chance that this legislation will never get through Parliament, or that Mr Johnson will be replaced. However, even if he stays, history suggests that the most likely outcome is Mr Johnson backing down and then denying what he has done.
It is easy to criticise Mr Johnson’s approach because it has been so consistently amoral. But just because he has acted abominably does not mean that there is not a real problem. Whether under this prime minister or another, there will be a need to resolve the dilemma he has created in agreeing a protocol which almost everyone now agrees they no longer want to see fully implemented, and in truth would probably be unimplementable.
That problem will long outlast Mr Johnson if not addressed. It is beyond doubt that a majority in Northern Ireland support the protocol. But Northern Ireland has not been run along majoritarian lines since 1972. The core of the Good Friday Agreement was a form of power-sharing which gave powerful vetoes to the minority — at that point, nationalism; now both nationalism and unionism.
Many of those who a year ago claimed that unionist opposition to this would soften have been proven wrong; unionism has instead hardened its stance. For all their differences, unionism and the EU face the same problem: They’re dealing with a slippery interlocutor; neither can be entirely sure what he’ll do next.